(a) Bombay Provincial Municipal Corporation Act (59 of 1949), S. 478 — Appellant's property was outside the limits of Pune Municipal Corporation — Appellant constructed a compound wall on the said property in the year 1969 — Said property included within the PMC limits in the year 1997 — On 3-4-2001, a notice under section 478 of the Bombay Provincial Municipal Corporation Act was issued to demolish the said compound wall — Construction of the compound wall was admittedly done prior to the inclusion of the area within the PMC limits and hence, ex-facie section 478 has no application — Held, the action of the Corporation of issuance of notice under section 478 was without jurisdiction.
(Para 10)
(b) Bombay Provincial Municipal Corporation Act (59 of 1949), SS. 253, 254 and 260 — Section 260 cannot be read in isolation and must be read with sections 253 and 254.
Where the construction of the compound wall by the appellant in the year 1969 and the reconstruction of the wall in the year 1992, after it was demolished by the Collector Pune, was prior to the inclusion of the appellant's land within the PMC limit in the year 1997, to none of these constructions either section 253 or section 254 will have any application. Section 260 cannot be read in isolation and will have to be read with sections 253 and 254. Section 253 provides that the notice should be given to Commissioner of intention to erect a new building whereas section 254 provides for notice to be given to the Commissioner of intention to make additions etc. To the existing building unless and until section 253 or section 254 applies, section 260 which provides for proceedings to be taken, for contravention thereof, can have no application.
(Paras 11 and 12)
(c) Bombay Provincial Municipal Corporation Act (59 of 1949), S. 487 — Suit instituted against Pune Municipal Corporation challenging notice issued under section 478 for demolition of compound wall constructed by the appellant on his property prior to the inclusion of the said property within the PMC limits — Action of the Corporation in issuing of notice under section 478 was without jurisdiction and de hors the provision of the Act — Issuance of notice under section 487 prior to the institution of the suit was not necessary.
(Para 14)
In the High Court of Bombay
Bombay Provincial Municipal Corporation Act, Section 478 : Applicability
(Bombay)
(Before G.S. Godbole, J.)
Ninad Sahakari Gruharachana Sanstha Maryadit, Pune Vs Pune Municipal Corporation
S.A. (St.) No. 24695 of 2011 with Civil Appln. No. 1298 of 2011
Decided on October 19, 2011
1. Heard Mr. Chandrachood for the appellant and Mr. Kulkami for the respondent.
2. Mr. Kulkami requested that instead of admitting the Appeal and keeping it pending, the Secpnd Appeal should be immediately taken up for final hearing and in view of this specific request and with the consent of the Advocate for the appellant - Mr. Chandrachood, the Second Appeal is taken up for final hearing.
3. In the year 1969, the property of the appellant was not included in the Pune Municipal Corporation limits. It is the case of the appellant that it has constructed a compound wall in the year 1969. The PMC limits were extended in the year 1997 and the property was included within the PMC limits. On 3-4-2001, a notice under section 478 of the BPMC Act, 1949 was issued calling upon the appellant to demolish the said compound wall. The appellant filed RCS No. 555/2001 in the Court of learned C.J. J.D., Pune for declaration and permanent injunction for challenging the said notice. A temporary injunction was granted but pending the suit the Corporation demolished the wall on 10th April, 2001. It is an admitted position that the appellant has thereafter again constructed the compound wall at the same location but no notice has been issued in respect of this construction made during the pendency of the suit. The learned C.J. J.D. (PMC) Court, Pune dismissed the suit on 17-12-2009. The plaintiff filed regular Civil Appeal No. 60 of 2010 and by the impugned judgment and order dated 29-7-2011, the learned District Judge, Pune has dismissed the said Appeal. Hence, this Second Appeal is filed.
4. The following questions of law are framed:
1. Whether, in view of the admitted fact that the compound wall had been constructed prior to inclusion of the property of the appellant within the Municipal limits and whether the PMC was entitled to serve a notice under section 478 of the BPMC Act, 1949 in respect of the said compound wall?
2. Whether, alternatively it can. be held that the said notice dated 3-4-2001, though having nomenclature as notice under section 478 of BPMC Act, 1949 can be construed to be a notice under section 260 of the said Act and can be sustained? And
3. Whether the Suit was bad for want of service of a notice under section 487 of the BPMC Act, 1949?
5. I have heard the learned counsels for the appellant and respondent at some length. Mr. Chandrachood submitted that since the wall in question had been constructed prior to inclusion of the property within the PMC limits neither section 478 nor section 260 would be attracted. He invited my attention to the provisions of sections 253, 254, 260 and section 478 and submitted that section 478 will apply only in respect of any work or thing requiring written permission of the Commissioner under any provision of that Act, or any Rule, Regulation or Bye-Law. He submitted that since the wall was in existence prior to the inclusion of the land within the PMC limits, the Commissioner or PMC were not a Planning Authority when the disputed wall was constructed. He also submitted that though compound wall can be included within the definition of term “building” under the BPMC Act, 1949 and under the MRTP Act, 1966, the term “building” has not been defined and the activity of the construction of a wall would not be covered within the definition of a term “development”. He further submitted that the activity of construction of compound wall will not be included
within the definition of the term “building operations” as given in section 2(5) of the MRTP Act, 1966. He further submitted that since section 478 had absolutely no application, the impugned action of issuing notice was neither an act done or purported to be done in pursuance or execution or intended execution of the Act and hence, notice under section 487 was not necessary.
6. On the other hand, Mr. Kulkami, learned Advocate for the respondent Corporation advanced following submissions:
(a) Since the land is included within the PMC limits, the Corporation is a Planning Authority and since construction of the compound wall was entirely illegal, the provisions of section 478 were rightly invoked and both the Courts have rightly upheld the said notice, (b) Assuming for the sake of argument that section 478 does not apply; in any case notice can be sustained with reference to the provisions of section 260 of the BPMC Act, 1949 and also under provisions of section 53 of the MRTP Act, 1966. Relying on the Judgment of the Supreme Court in the case of Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Mcmilal, (1983) 2 SCC 422 : AIR 1983 SC 537 and particularly relying on the observations in paragraphs 5, 6 and 7 he submitted that even if it is to be held that section 478 of the 1949 Act is not attracted; in any case section 260 will be attracted and hence, the nomenclature of the notice is immaterial. Relying on the definition of the term “building” in section 2(5) of the 1949 Act, he submitted that even a compound wall is included in the definition of the term “building” since the compound wall had been constructed without having such valid permission even from the earlier Planning Authority, namely, Collector Pune; the action of the Corporation was justified.
7. I have considered the rival contentions in the backdrop of the questions of law already framed herein-above. Before deciding the rival contentions, it would be essential to note certain relevant’provisions of the BPMC Act, 1949 and MR and TP Act, 1966.
(a) Section 2(5) of the 1949 Act, defines term “building” as under:
“building” includes a house, out-house, stable, shed, hut and other enclosure or structure whether of masonry, bricks, wood, mud, metal or any other material whatever whether used as a human dwelling or otherwise, and also includes verandahs, fixed platforms, plinths, doorsteps, walls including compound walls and fencing and the like;
(b) Sections 253, 254 and 260 of the 1949 Act read thus:
253. Notice to be given to Commissioner of intention to erect building : (1) Every person who shall intend to erect a building shall give to the Commissioner notice of his said intention in the form prescribed in the bye-laws and containing all such informations as may be required to be furnished under the bye-laws.
(2) Every such notice shall be signed in the manner prescribed in the bye-laws and shall be accompanied by such documents and plans as may be so prescribed.
(3) In this Chapter, the expression “to erect a building” means—
(a) newly to erect a building on any site whether previous built upon or not,
(b) to re-erect—
(i) any building of which more than one-half of the cubical contents of the building above the level of the plinth have been pulled down, burnt or destroyed,
(ii) any masonry building of which more than three-fourth of the superficial area of the external walls above the level of the plinth has been pulled down, or
(iii) any frame building of which more than three quarters of the number of the posts of beams in the external walls have been pulled down.
(c) to convert into a dwelling house any building or part of a building not originally constructed for human habitation or originally so constructed, appropriated for any other purpose,
(d) to convert into more than one dwelling house a building originally constructed as one dwelling house only,
(e) to convert by any structural alteration into a place of religious worship or into a sacred building any place or building not originally meant or constructed for such purpose,
(f) ) to roof or cover an open space between walls or buildings as regards the structure which is formed by roofing or covering such space,
(g) to convert by a structural alteration two or more tenements in building into a greater or lesser number,
(h) to make any structural alteration in a building so as to affect its drainage or sanitary arrangements or its stability,
(i) to convert into a stall, shop, warehouse or godown any building not originally constructed for use as such, or (j) to construct in a wall adjoining any street or land not vested in the owner of the wall, a door opening on such street or land, and each of the above operations shall be deemed to be the erection of a new building for the purposes of this Chapter.
254. Notice to be given to Commissioner of intention to make additions etc. to building. — (1) Every person who shall intend—
(a) to make any addition to a building,
(b) to make any alteration or repairs to a building,not being a frame building involving the removal or re-erection of any external or party wall thereof or of any wall which supports the roof thereof, to an extent exceeding one-half of such wall above the plinth level, such half to be measured in superficial feet,
(c) to make any alteration or repairs to a frame-building involving the removal or re-erection of more than one-half of the posts or beams in any such wall thereof as aforesaid or involving the removal or re-erection of any such wall thereof as aforesaid to an extent exceeding one-half to such wall above plinth level, such half to be measured in superficial feet,
(d) to make any alteration in a building involving—
(i) the sub-division of any room in such building so as to convert the same into two or more separate rooms, or
(ii) the conversion of any passage or space in such building into a room or rooms,
(e) to repair, remove, construct, reconstruct or add to any portion of a building abutting on a street which stands within the regular line of such street,
(f) to carry out any work in a building involving—
(i) the construction or re-construction of a roof,
(ii) the conversion of a roof into a terrace,
(iii) the conversion of a terrace into a roof, or
(iv) the construction of a lift shaft,
(g) to carry out any repairs to a building involving the construction of a floor of a room (excluding the ground floor),
(h) to permanently close any door or window in an external wait, or
(i) to remove or reconstruct the principal staircase or to alter its position, shall given notice to the Commissioner, in the form prescribed in the bye-law and containing all such information as may be required to be furnished under the bye-laws.
(2) 2) Every such notice shall be signed in the manner prescribed in the bye-laws and shall be accompanied by such documents and plans as may be so prescribed.
260. Proceedings to be taken in respect of building or work commenced contrary to rules or bye-laws. — (1) If the erection of any building or the execution of any such work as is described in section 254 is commenced or carried out contrary to the provisions of the rules or bye-laws, the Commissioner, unless he deems it necessary to take proceedings in respect of such building or work under section 264, shall—
(a) by written notice, require the person who is erecting such building or executing such work or has erected such building or executed such work on or before such day as shall be specified in such notice, by a statement in writing subscribed by him or by an agent duly authorised by him in that behalf and addressed to the Commissioner, to show sufficient cause why such building or work shall not be removed, altered or pulled down, or
(b) shall require the said person on such day and at such time and place as shall be specified in such notice to attend personally or by an agent duly authorised by him in that behalf, and show sufficient cause why such building or work shall not be removed, altered or pulled down.
(2) If such person shall fail to show sufficient cause, to the satisfaction of the Commissioner, why such building or work shall not be removed, altered or pulled down, the Commissioner may remove, alter or pull down the building or work and the expenses thereof shall he paid by the said person.
(c) Section 478 of the said Act reads thus:
478. Work or thing done without written permission of the Commissioner to be deemed unauthorised. — (1) If any work or thing requiring the written permission of the Commissioner under any provisions of this Act, or any rule, regulation or bye-law is done by any person without obtaining such written permission or if such written permission is subsequently suspended or revoked for any reason by the Commissioner, such work or thing shall be deemed to be unauthorised and, subject to any other provision of this Act, the Commissioner may at any time, by written notice, require that the, same shall be removed, pulled down or undone, as the case may be, by the person so carrying out or doing. If the person carrying out such work or doing such thing is not the owner at the time of such notice then the owner at the time of giving such notice shall be liable for carrying out the requisition of the Commissioner.
(2) If within the period specified in such written notice the requisitions contained therein are not carried out by the person or owner, as the case may be, the Commissioner may remove or alter such work or undo such thing and the expenses thereof shall be paid by such person or owner, as the case may be.
(d) Section 487. Protection of persons acting under this Act against suits.— (1) No suit shall be instituted against the Corporation or against the Commissioner, or the Transport Manager, or against any municipal officer or servant, in respect of any act done or purported to be done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act:—
(a) until the expiration of one month next after notice in writing has been in the case of the Corporation, left at the chief municipal office and, in the case of the Commissioner or of the Transport Manager or of a municipal officer or servant delivered to him or left at his office or place of abode, stating with reasonable particularity the cause,of action and the name and place of abode of the intending plaintiff and of his attorney, advocate, pleader or agent, if any for the purpose of such suit, nor
(b) unless it is commenced, within six months next after the accrual of the cause of action.
(2) At the trial of any such suit—
(a) the plaintiff shall not be permitted to go into evidence of any cause of action except such as is set forth in the notice delivered or left by him as aforesaid:
(b) the claim, if it be for damages, shall be dismissed if tender of sufficient amends shall have been made before the suit was instituted or if, after the, institution of the suit, a sufficient sum of money is paid into Court with costs.
(3) Where the defendant in any such suit is a municipal officer or servant, payment of the sum or of any part of any sum payable by him in, or in consequence of the suit, whether in respect of costs, charges, expenses, compensation for damages or otherwise, may be made, with
the previous sanction of the Standing Committee or the Transport Committee from the Municipal Fund or the Transport Fund, as the case may be.
(e) Section 2(5) of the 1966 Act, defines the term “building operations” as under :
“Building operations” includes erection or re-erection of a building or any part thereof, roofing or re-roofing of any part of a building or of any open space, any material alteration or enlargement of a building, any such alteration of a building as is likely to affect an alteration of its drainage or sanitary arrangement or materially affect its security, or the construction of a door opening on any street or land not belonging to the owner;
(f) Section 2(7) of the said 1966 Act defines the term “Development” as under :
“Development” with its grammatical variations means the carrying out of buildings, engineering, mining or other operations in, or over, or under, land or the making of any material change, in any building or land or in the use of any building or land [or any material or structural change in any heritage; building or its precincts] [and includes [demolition of any existing building structure or erection or part of such building, structure or erection; and] [reclamation], redevelopment and lay-out and sub-division of any land; and “to develop” shall be construed accordingly;
(g) Section 18(1) provides for Restriction on change of users of land or development thereof and reads thus — (1) No person shall on or [after the publication of the notice that the draft Regional plan has been prepared or the draft Regional plan has been approved, institute or change the use of any land for any purpose other than agriculture, or carry out any development in respect of any land without the previous permission of the Municipal Corporation or Municipal Council, within whose area the land is situate, and elsewhere, of the Collector.
(h) Section 53 of the said Act reads thus:
53. Power to require removal of unauthorised development. — (1) Where any development of land has been carried out as indicated in sub-section
(1) 1) of section 52, the Planning Authority may, subject to the provisions of this section [****] serve on the owner a notice requiring him, within such period, being not less than one month, as may be specified, therein after the service or the notice, to take such steps as may be specified in the notice,
(a) in cases specified in the clause (a) or (c) of sub-section (1) of section 52, to restore the land to its condition existing before the said development took place.
(b) in cases prescribed in clauses (b) or (d) of sub-section (1) of section 52, to secure compliance with the conditions or with the permission as modified;
Provided that, where the notice requires the discontinuance of any use of land, the Planning Authority shall serve a notice on the occupier also.
(2) In particular, such notice may, for purposes of sub-section (1), require—
(a) the demolition or alteration of any building or works;
(b) the carrying out on land of any building or works;
(c) the discontinuance of any use of land.
(3) Any person aggrieved by such notice may, within the period specified in the notice and in the manner prescribed, apply for permission under section 44 for retention on the land of any building or works or for the continuance of any use of the land, to which the notice relates, and pending the final determination or withdrawal of the application, the mere notice itself shall not affect the retention of buildings or works or the continuance of such use.
(4) The foregoing provisions of this Chapter shall, so far as may be applicable apply to an application made under sub-section (2).
(5) If the permission applied for is granted, the notice shall stand withdrawn; but if the permission applied for is not granted, the notice shall stand; or if such permission is granted for the retention only of some buildings, or works, or for the continuance of use of only a part of the land, the notice shall stand withdrawn as respects such buildings or works or such part of the land, but shall stand as respects other buildings or works or other part of the land, as the case may be and thereupon, the owner shall be required to take steps specified in the notice under sub-section (1) as respects such other buildings, works of part of the land.
(6) If within the period specified in the notice or within the same period after the disposal of the application under sub-section (4), the notice or so much of it as stands is not complied with, the planning Authority may—
(a) prosecute the owner for not complying with the notice, and where the notice requires the discontinuance of any use of land any other person also who uses the land or causes or permits the land to be used in contravention of the notice; and
(b) where the notice requires the demolition or alteration of any building or works carrying out of any building or other operations, itself cause the restoration of the land to its conditions before the development took place and secure compliance with the conditions of the permission or with the permission as modified by taking such steps as the Planning Authority may consider necessary including demolition or alteration of any building or works or carrying out of any building or other operations; and recover the amount of any expenses incurred by it in this behalf from the owner as arrears of land revenue.
(7) Any person prosecuted under clause (a) of sub-section (6) shall, on conviction, [be punished with imprisonment for a term [which shall
not be less than one month but which may extend to three years and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees, and in the case of a continuing offence with a further daily fine which may extend to two hundred rupees] for every day during which such offence continues after conviction for the first commission of the offence.
8. In the present case it is not in dispute that prior to the inclusion of the property of the appellant within the PMC limits, the appellant had already got a layout sanctioned from the then Planning Authority, namely, Collector on 14-7-1969 and had constructed houses for its individual members and the compound wall was admittedly constructed prior to the inclusion of the land within PMC limits. Thus as on the date of the issuance of notice under section 478 i.e. on 3-4-2001, the compound wall which was already constructed prior to the inclusion of the land under PMC limits was existing. On this background, the submissions of the learned counsels regarding applicability of section 478 or section 260 as the case may be will have to be considered.
9. Considering the definition of the word “building operations” as indicated in section 2(5) of the 1966 Act and the term “development” in section 2(7) of the 1966 Act together; it will be clear that construction of a compound wall would not be per se either a building operation or a development vis-vis the provisions of the said 1966 Act as they existed at the relevant time. At the relevant time, the Collector was the Planning Authority under section 18(1) of the Act, 1966 and if the construction was illegal as contended by the respondent therein, it was the Collector alone who could have taken. Action after the inclusion of the area within PMC limits; by virtue of provisions of section 2(15) and 2(19) of the 1966 Act which respectively define the terms “Local Authority” and “Planning Authority”, the Municipal Corporation became Planning Authority in place of and instead of the Collector. If according to the Municipal Corporation, the construction was illegal, nothing prevented the Corporation from taking action in respect of such alleged illegal construction under the provisions of 1966 Act. However, admittedly no action under the 1966 Act has been taken.
10. In my opinion, neither section 478 nor section 260 will be applicable to the facts of this case. Section 478 uses words “requiring the written permission of the Commissioner under any provision of this Act, or any rule, regulation or bye-law.” It is thus clear that the work or thing has to be one which requires written permission of the Commissioner under the 1949 Act or any rule, regulation or bye law which has been essential requirement of any Rule, Regulation under the Bye-Laws framed under the 1949 Act. The construction of the compound wall was admittedly done prior to the inclusion of the area within the PMC limits and hence, ex-facie section 478 has no application to the facts of the present case.
11. Mr. Kulkami, learned Advocate for the respondent drew my attention to the observations in paragraph 8 of the Judgment of the District Court which extracts the part of the oral evidence of the appellant's witnesses. The said admission clearly shows that prior to the inclusion of the land within PMC limits, the wall in question had been demolished by the then Planning Authority, namely, the Collector but the wall was again constructed in the year 1992 again
without permission of the Planning Authority. In view of this fact Mr. Kulkami submitted that since the construction is per se illegal, this Court would not go into the question as to whether section 478 applies or section 260 applies and the Appeal can not be entertained and need not be entertained. It is difficult to accept this argument. If the power of the Authority to take a particular action is vested in a statutory functionary, unless and until the conditions which are pre-requisite for exercising such authority are existing, the statutory functionary cannot exercise such power or take such statutory action. It is true that that compound wall is covered within the definition of the term “building” under section 2(5) of the 1949 Act and it is also true that the witness of the appellant has clearly admitted that the earlier Planning Authority namely, Collector had demolished the wall and the same has been reconstructed without obtaining permission of the then Planning Authority in the year 1992. On this background the Corporation would have been justified in exercising of its power under section 53 of the 1966 Act but power under section 478 or section 260 of the 1949 Act could not have been exercised for the reasons which I propose to indicate hereinafter.
12. I have already come to the conclusion that section 478 has no application. Then it is necessary to consider the alternative argument as contended by Mr. Kulkami that the suit notice issued should be considered as the one under section 260. Even this submission does not commend to me. Section 260 cannot be read in isolation and will have to be read with sections 253 and ‘254/Section 253 provides that the notice should be given to Commissioner of intention to erect a new building whereas section 254 provides for notice to be given to the Commissioner of intention to make additions etc. to the existing building. Construction of the compound wall in the year 1969 and the reconstruction of the wall in the year 1992, after it was demolished, are admittedly prior to the inclusion of the land within the PMC limits in the year 1997. These facts are admitted. Thus to none of these constructions either section 253 or section 254 will have any application. Unless and until section 254 applies, section 260 cannot have any application. In view of this, though Mr. Kuklkami had rightly relied on the Judgment of the Supreme Court in Municipal Corporation of the City of Ahmedabad supra; the ratio of that Judgment does not apply to the facts of this case and hence alternative submission of Mr. Kulkami cannot be accepted.
13. This takes me to the third question as to whether the suit could have dismissed for want of statutory notice under section 487 of the 1949 Act. Provisions of section 487 are already extracted above. In the backdrop of the findings which I have recorded about the inherent illegality and lack of authority of the action of the issuance of the notice under section 478, the said question will have to be considered.
14. Section 487 provides for issuance of a notice prior to the institution of the suit. In the present case, it is not disputed that the said notice had not been served upon the appellant. In the present case, it has been clearly brought on record that action of the Corporation of issuance of notice under section 478 was without jurisdiction and such an action has been clearly shown to be de horse the provisions of the Act. The moment such a finding is recorded, such a notice under section 487 does not become necessary in the facts of this case. There is
ample authority of law in support of this proposition which is rightly advanced by Mr. Chandrachood. In my opinion, the impugned action of issuance of notice under section 478 cannot be considered as an act done or purported to be done in pursuance or execution or intended execution of the 1949 Act and hence, the notice under section 487 is not necessary. In the present case, the Trial Court and the Appellate Court had recorded a finding that the issuance of notice dated 3-4-2001 was not illegal or the action was not void ab-initio. In view of the aforesaid discussion, the findings of the Trial Court and the District Court which are the findings on a question of law have been reversed by me and consequently, the consequential findings regarding notice under section 487 has also to be reversed.
15. Before I part with this Judgment, it is necessary to clarify that this Judgment should not be construed to mean that the action of the appellant of constructing the compound wall; first in the year 1969 and thereafter, reconstructing it in the year 1992 after the demolition which had been done by the Planning Authority i.e. the Collector or the reconstruction done after the demolition by PMC should be construed to be legal. The action of construction and reconstruction of the compound wall has not been shown to have been done with any valid legal authority and consequently, that finding cannot be recorded in favour of the appellant so also the action of reconstruction of the compound wall after its demolition pursuant to the impugned notice dated 3-4-2001 can also not to be held to be an activity conferring legitimacy and legality to the said construction. In this context it is needless to say that the Municipal Corporation can adopt such a remedy either under the 1949 Act or under the 1966 Act as may be available in law and all contentions of both the parties in that regard are expressly kept open to be adopted in such a proceedings, if the same are initiated.
16. Hence, I pass following order:
i Subject to the clarification specifically given in paragraph 15 herein above, the Second Appeal is allowed.
ii. The impugned Judgment and Order dated 17-12-2009 passed by the learned C.J. J.D., PMC Court, Pune in R.C.S. No. 555/2001 as confirmed by the impugned Judgment and Order dated 29-7-2011 passed by the learned District Judge-16 Pune in Civil Appeal No. 60 of 2010 are hereby quashed and set aside.
iii. RCS No. 555/2001 is decreed and it is made clear that the impugned notice dated 3-4-2001 issued by the Pune Municipal Corporation in purported exercise of powers conferred by section 478 of the BPMC Act, 1949 is null and void and is without jurisdiction.
iv. It is clarified as noted in paragraph 15 above that this Judgment should not be construed to be a Judgment conferring any legality to the construction of compound wall and that question will have to be decided in appropriate proceedings as and when the respondent Corporation initiates such proceedings.
v. The parties to bear their own costs.
vi. In view of the disposal of the Second Appeal, the Civil Application 1298 of 2011 does not survive and the same is also disposed off as such.
Order accordingly.
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